Public Citizen

Marketing Machines that Sell American Juries Short

There seems to be more and more crowing about the medical malpractice sky falling by predictable lobbies parading as advocates for the people.

Take the chairman of Common Good, Phillip K. Howard, who recently suggested in The Washington Examiner that our constitutional right to a jury trial should be abolished. In the future, he contends, all medical negligence claims should be forced into a tribunal where decisions are made by specially trained insurance panels and compensation is doled out according to a “schedule of benefits.”

Howard failed to mention that as partner in one New York’s largest corporate defense law firms, Covington and Burling LLP, he was one of the chief architects of the so-called “tort reform” movement and served as counsel for Big Tobacco. Recently, he’s founded “Common Good,” a front group that hides its true purpose behind a doublespeak name and high-priced public relations spin to mask a corporate agenda.

Howard’s real goal is to abolish the American jury system and replace it with elite decision-makers sympathetic to the interests of his corporate and professional clients. In 2005, the American Medical Association, so impressed with his efforts on their behalf, awarded him their Presidential Citation.

According to Howard, the possibility of being sued has created a “culture of fear” among doctors that is causing inefficiencies at every level of medicine. Of course, this is pure propaganda. Most doctors are never sued for malpractice. In 2005, out of over 800,000 licensed doctors in this country, only 17,298 reported a malpractice settlement or judgment (less than one percent).

Howard further attempts to perpetuate the myth that the civil justice system is out-of-control. Yet many empirical studies have shown American juries to be rational in their decisions and, if anything, slightly biased in favor of doctors. The Harvard study cited by Howard found that the civil justice system performs reasonably well in its function of separating claims without merit from those with merit and compensating the meritorious ones. When there was jury error, the more common inaccuracy was the jury’s failure to compensate a meritorious claim.

In fact, the jury system is the best institution we have for putting individuals on an equal footing with wealthy corporations. The civil justice system provides an objective process in which everyday people can defend their rights and hold the most powerful interests in society accountable. It is far too easy – and frightening – to imaging what would happen if corporations only focused on the bottom line and were never held responsible for negligent decisions.

Its no wonder powerful interests – like the ones that Howard represents – are lobbying so hard to weaken the justice system.

Comments

Anirban posted a comment that challenged my statement that “The Harvard study cited by Howard found that the civil justice system performs reasonably well in its function of separating claims without merit from those with merit and compensating the meritorious ones. When there was jury error, the more common inaccuracy was the jury’s failure to compensate a meritorious claim.”

Here is the basis for my statement based directly on what Studdert et al, found and concluded in their study titled, Claims, Errors, and Compensation Payments in Medical Malpractice Litigation, in the NEJM 354:19, on May 11, 2006.

Studdert Findings: at page 2028: “Overall, 73 percent (1054 of 1441) of all claims for which determinations of merit were made had outcomes concordant with their merit. Discordant outcomes in the remaining 27 percent of claims consisted of three types: payment in the absence of documented injury (6 of 1441[0.4 percent of all claims]), payment in the absence of error (10 percent), and no payment in the presence of error (16 percent). Thus, nonpayment of claims with merit occurred more frequently than did payment of claims that were not associated with errors or injuries.”

Studdert Conclusion: at page 2031: “Our findings point toward two general conclusions. One is that portraits of a malpractice system that is stricken with frivolous litigation are overblown. [***]A second conclusion is that the malpractice system performs reasonably well in its function of separating claims without merit from those with merit and compensating the latter.”

Further at page 2030 Studdert adds this important insight: “The profile of non-error claims we observed does not square with the notion of opportunistic trial lawyers pursuing questionable lawsuits in circumstances in which their chances of winning are reasonable and prospective returns in the event of a win are high. Rather, our findings underscore how difficult it may be for plaintiffs and their attorneys to discern what has happened before the initiation of a claim and the acquisition of knowledge that comes from the investigations, consultation with experts, and sharing of information that litigation triggers. Previous research has described tort litigation as a process in which information is cumulatively acquired.”

In his 2006 article that collects and evaluates three decades of empirical research on jury decision-making in malpractice litigation, Philip G. Peters, Jr. observed that “hapless juries have become the symbol of a civil justice system run amok.” However his exhaustive study of jury performance in medical malpractice cases forced him to conclude: “the data demonstrate that juries treat physicians very fairly, perhaps with too much deference[****]although the current system of resolving malpractice claims has many shortcomings, neither randomness nor favoritism toward injured patients is among them.”

It will be naïve to conclude anything , not looking at the figures , and whatever Studdert concludes doesn’t go well with the Statistics

Just look at the Figure on P.2028 you are referring to →
1. 145 out of 515 cases involving no error → were resolved at a average amount of $313,205 . Harvard people ornaments this with cognitive distortions like “resolved appropriately” and “fairly small” . Hell it is a lot of money and don’t tell me someone wont play it if running the hit is 1 in 4
2. 236 out of 889 cases involving documented error got nothing → bad for the plaintiffs , but it is ~ 27% . How come the nonpayment in the meritorious case trumps the payment in non-meritorious cases . Both of them are in tune of 27-28%

Now your other conclusions →portraits of a malpractice system that is stricken with frivolous litigation are overblown

Isn't this conclusion a little overblown ? From the same figure in Page 2028 -- if plaintiffs' lawyers truly believe that meritless lawsuits are "bad business," why they get nothing in 370 cases out of 515 , they pursue . why are there so many? & so many lost? Could this be because they still win 1 out of 4 (as said before ) averaging
$313,205 Settlement.

malpractice system performs reasonably well in its function of separating claims without merit from those with merit and compensating the latter

Absolutely. almost 1/4 th of miss in both cases. What other areas of life we can tolerate this level of inefficiency?

The profile of non-error claims we observed does not square with the notion of opportunistic trial lawyers pursuing questionable lawsuits in circumstances in which their chances of winning are reasonable and prospective returns in the event of a win are high. Rather, our findings underscore how difficult it may be for plaintiffs and their attorneys to discern what has happened before the initiation of a claim and the acquisition of knowledge

What a gem ! Wish they could leave some sympathy for the doctors on which they are wrecking havoc . the lawyers difficulty is not documented in this paper. It is their assertion without any evidence . No findings can underscore it, what so ever. But who cares for the facts so long the holy cow justice system remains unscathed.